Petition for Writ of Certiorari — Charles Ben Bounds, Petitioner v. United States
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-10165
October 28, 2019
D.C. Docket No. 4:16-CR-132-1
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CHARLES BEN BOUNDS, also known as Pretty Boy,
Defendant - Appellant
Appeal from the United States District Court for the
Northern District of Texas
Before KING, HIGGINSON, and DUNCAN, Circuit Judges.
JUDGMENT
This cause was considered on the record on appeal and was argued by
counsel.
It is ordered and adjudged that the judgment of the District Court is
affirmed.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10165
United States Court of Appeals
Fifth Circuit
FILED
October 28, 2019
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
BILLY FRED GENTRY, JR., also known as Fred Gentry; NICOLE
CYNTHIA HERRERA, also known as "Nikki Single"; BILLY RAY SKAGGS;
CHARLES BEN BOUNDS, also known as Pretty Boy; TRAE SHORT, also
known as "Twig"; KEVIN KYLE KILLOUGH, also known as Kilo; MICHAEL
CLAY HEASLET,
Defendants - Appellants
Appeals from the United States District Court
for the Northern District of Texas
Before KING, HIGGINSON, and DUNCAN, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
This case involves a direct criminal appeal by seven defendants from a
jury trial that resulted in each defendant’s conviction on a single count:
conspiracy to possess with intent to distribute 50 grams or more of
methamphetamine (“meth”). The defendants—Charles Ben Bounds, aka
“Pretty Boy” (“Bounds”), Nicole Cynthia Herrera, aka “Nikki Single”
(“Herrera”), Michael Clay Heaslet (“Heaslet”), Billy Ray Skaggs (“Skaggs”),
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Kevin Kyle Killough, aka “Kilo” (“Killough”), Billy Fred Gentry, Jr., aka Fred
Gentry (“Gentry”), and Trae Short aka “Twig” (“Short”)—each appeal a distinct
set of issues ranging from pretrial rulings to sentencing decisions. We hold that
the district court erred in calculating the quantity of drugs attributable to
Killough at sentencing. We AFFIRM on all other issues. We therefore VACATE
Killough’s sentence and REMAND to the district court for resentencing.
General Factual Background
Following the government’s third superseding indictment, a grand jury
in the Northern District of Texas returned a true bill charging all seven
defendants with one count: violation of 21 U.S.C. § 846, conspiracy to possess
with intent to distribute meth. Although not all of the defendants were
members of the Aryan Brotherhood of Texas, trial evidence connected the
conspiracy to that group.
The case proceeded to a jury trial, which was held over four days from
August 29 through September 1, 2016. Various cooperating witnesses testified
about their own roles in the conspiracy as well as the defendants’ roles. The
government also introduced testimony from local law enforcement officers and
case agents from the Drug Enforcement Administration (“DEA”) and the
Department of Homeland Security (“Homeland Security”). The jury found all
seven defendants guilty of the single count in the indictment.
Thereafter, the district court sentenced each defendant separately, as
follows:
• Bounds: 360 months imprisonment
• Herrera: 300 months imprisonment
• Heaslet: life imprisonment
• Skaggs: 300 months imprisonment
• Killough: life imprisonment
• Gentry: 360 months imprisonment
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• Short: life imprisonment
Each defendant filed a timely notice of appeal.
Bounds
Bounds argues that the district court erred in denying his motions to
substitute counsel and his attorney’s motions to withdraw because: (1) his
attorney had an irreconcilable conflict of interest, and (2) there had been a
complete breakdown in communication. Bounds asserts both that these errors
violated his Sixth Amendment rights and amounted to an abuse of discretion.
Bounds also appeals the district court’s application of a two-level obstructionof-justice sentence enhancement under U.S.S.G. § 3C1.1. We AFFIRM.
I. Summary of Relevant Facts and Proceedings
The district court appointed Mark Danielson (“Danielson”) to represent
Bounds on April 12, 2016. On June 13, Bounds filed a pro se motion entitled,
“Motion Amicus Curiae Adversary,” which alleged that his counsel was
ineffective. The district court issued a written order requiring Danielson to
meet with Bounds and attempt to resolve their differences. The order advised,
“Often what appear to be irreconcilable differences between a defendant and
appointed counsel. . . are nothing more than misunderstandings that can
readily be resolved by frank and open discussions.”
One day after Danielson and Bounds met, Bounds filed another motion
entitled, “Defendants Motion to Dismiss Counsel.” This motion complained
that Danielson was filing motions without Bounds’s permission, expressed
Bounds’s desire to obtain a full copy of his discovery, and stated that Bounds
could not come to an understanding with Danielson. The district court set a
hearing for July 1. At the hearing, the district court asked Bounds if it was still
his desire to discharge Danielson, and Bounds said no. Bounds said he had
changed his mind and the disagreement was based on a misunderstanding.
Danielson agreed that he and Bounds could continue to work together.
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About a month later, on July 25, Danielson filed a motion to withdraw.
The motion explained that “[a]t the most recent attorney-client conference on
July 15, 2016 the defendant refused to discuss trial preparation issues with
counsel, instead resuming his complaints and accusing counsel of being
dishonest with him.” According to the motion, Bounds told Danielson that
Bounds would “again complain to the judge about [Danielson’s] representation
and ask for new counsel,” and then Bounds “stormed out of the conference
room.” The motion concluded, “Based on the foregoing, counsel believes that
the attorney-client relationship is irreparably damaged and that he has no
remaining option but to request to be relieved of further representation of the
defendant.”
The district court set a hearing on the motion for July 29, with trial set
to begin on August 22. At the hearing, Mr. Bounds described his conflict with
Danielson:
During counsel’s appointment, my requests for discovery [have]
continuously been denied, and, therefore, counsel’s performance
is deficient in this respect. Therefore, I respectfully request that
the Court orders counsel to provide me with discovery in my case
and all documents that are non-work product or trial material,
and a continuance to allow me to review my case before I decide
to accept a plea or reject a plea.
Danielson responded that he had shown Mr. Bounds copies of all the pertinent
reports, but he could not give Bounds copies to keep in the jail. Ultimately, the
district court concluded that the trial date was “too close” to “change an
attorney.” The district court admonished Bounds that Danielson was “an
excellent attorney, and if you give him a chance, he’ll do you a good job. If you
don’t give him a chance, he’ll do the best he can, but he could do a whole lot
better job if you cooperate with him and listen to what he says.” The district
court also explained that “sometimes lawyers have to make judgments because
of the time elements and do what they think is best for their client.”
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After the hearing, Bounds sent Danielson a series of emails detailing
continued distrust and requesting that Danielson take various legal actions
including “file a motion to [sever]” and a “motion of discovery.” Danielson
responded at some length, explaining his reasons for not filing the motions and
clarifying that while the decisions of whether to plead guilty and testify
belonged to Bounds, “other tactical decisions are for your lawyer to make.”
On August 26, three days before trial was scheduled to begin, Danielson
filed an “Ex-Parte Notice of Actual Conflict of Interest and Second Motion to
Withdraw.” The motion stated that “every conversation” Danielson had had
with Bounds “included at least one outburst by Mr. Bounds complaining about
[Danielson’s] representation” and that Bounds had recently sent a “profanitylaced email” demanding a certain course of action. Danielson also explained
that he had recently received notice from the Office of Disciplinary Counsel of
the State Bar of Texas that Bounds had filed a formal grievance against him.
The grievance had been dismissed, but that dismissal was appealable.
Danielson explained that he felt he was now “essentially representing two
parties who are involved in a legal conflict with one another: Mr. Bounds and
myself.”
On August 29, the morning trial began, the district court held a hearing
on Danielson’s second motion to withdraw. The district court denied
Danielson’s motion to withdraw, finding “no genuine or actual conflict”
between Danielson and Bounds. The district court found, instead, that there
was “a false, contrived conflict created by Bounds with the desired intent to
disrupt the judicial process in this case.”1 Trial proceeded without incident
between Danielson and Bounds.
The district court gave the following, more extensive assessment:
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At sentencing, Danielson objected to a two-level sentence enhancement
for obstruction of justice under U.S.S.G. § 3C1.1 based on the conduct described
above. The district court overruled Danielson’s objection, stating that he had
no reason to change his previous factual finding that Bounds had attempted to
“obstruct the orderly procedures in this courtroom” and “interfere with the fair
administration of justice.” The district court ultimately sentenced Bounds to
360 months, at the bottom of the 360-to-480-months United States Sentencing
Guidelines (“Guidelines”) range.
II. Analysis
A. Denial of Requests for Substitute Counsel
“In all criminal prosecutions, the accused shall . . . have the Assistance
of Counsel for his defense.” U.S. Const, amend. VI. Sixth Amendment claims
receive de novo review. United States v. Simpson, 645 F.3d 300, 307 (5th Cir.
2011). “[I]f [the Sixth] Amendment has not been violated, the trial court’s
refusal to appoint substitute counsel is reviewed for an abuse of discretion.” Id.
at 307. “A district court abuses its discretion if it bases its decision on an error
To grant Danielson’s Motion to Withdraw would invite criminal
defendants to take the same type of extraordinary steps that
Bounds has taken in this case to disrupt a criminal proceeding
or to engage in selection of counsel of the defendant’s choice.
The Court has no reason to think that anything has happened
that would adversely affect the quality of Danielson’s
representation of Bounds at trial. Apparently, Danielson has
some strong feelings on that subject, but my experience with him
is that he’s not going to allow what has happened to adversely
affect the quality of his representation of Bounds.
To perhaps make the matter less stressful to you, the Rule 1.15
of the Texas Rules of Professional Conduct says that you’re
relieved of the obligation to withdraw under the circumstances
that we discussed earlier if you’re ordered by a tribunal to
continue to represent the defendant, so I’m ordering you to
continue to represent Mr. Bounds.
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of law or a clearly erroneous assessment of the evidence.” United States v.
Teuschler, 689 F.3d 397, 399 (5th Cir. 2012) (quoting United States v. Castillo,
430 F.3d 230, 238-39 (5th Cir. 2005)).
1. Conflict of Interest
“[A] lawyer’s conflict of interest may be so flagrant as to constitute a
violation of the Sixth Amendment.” Simpson, 645 F.3d at 310. Where an
attorney’s alleged conflict of interest “springs not from multiple client
representation but from a conflict between the attorney’s personal interest and
that of his client,” Strickland v. Washington, 466 U.S. 668 (1984), applies. Beets
v. Scott, 65 F.3d 1258, 1260, 1272 (5th Cir. 1995). Under Strickland, a
defendant “must show that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” 466 U.S. at 687.
Even assuming arguendo that Danielson’s representation was deficient
in this case, Bounds has failed to show any prejudice as a result. Bounds argues
that the conflict itself was prejudice, but this argument is foreclosed by Beets.
65 F.3d at 1268 (“Strickland did not say that prejudice is presumed whenever
counsel breaches the duty of loyalty.”). In Beets, the defendant’s attorney
collected a fee in the form of a media rights contract, which “posed a serious
potential conflict of interest.” Id. at 1274. Still, the court determined that the
Strickland prejudice prong was unmet because the defendant “failed to show
how [the media rights contract] hindered [the attorney’s] presentation of her
defense or prejudiced her by rendering the result of her criminal prosecution
fundamentally unreliable.” Id. Similarly, Bounds makes no argument about
how Danielson’s representation harmed his case and nothing in the trial
transcript indicates that it did.
The district court also did not abuse its discretion by denying the motions
for substitute counsel on the basis of a conflict of interest. The district court
held multiple hearings, heard from all interested parties, and reasonably
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concluded—based on the unique circumstances in this case—that Danielson
could continue to provide effective representation.
2. Breakdown in Communication
“The court is constitutionally required to provide substitute counsel . . .
if there is a . . . complete breakdown in communication.” United States v.
Mitchell, 709 F.3d 436, 441—42 (5th Cir. 2013) (cleaned up). But “reversal is
inappropriate when the breakdown can be attributed to the defendant’s
intransigence, and not to the neglect of defense counsel or the trial court.”
Simpson, 645 F.3d at 308.
Even assuming arguendo that there was a complete breakdown in
communication between Danielson and Bounds, there is no evidence that
communication difficulties could be attributed to “neglect of defense counsel or
the trial court.” Id. The district court explained to Bounds that Danielson was
“an excellent attorney, and if you give him a chance, he’ll do you a good job. If
you don’t give him a chance, he’ll do the best he can, but he could do a whole
lot better job if you cooperate with him and listen to what he says.”
Additionally, Danielson met with Bounds and responded to Bounds’s
communications throughout the pendency of the case. Danielson responded
with specificity and professionalism to Bounds’s emails and clarified that while
the decisions of whether to plead guilty and testify belonged to Bounds, “other
tactical decisions are for your lawyer to make.”
For similar reasons, the district court did not abuse its discretion by
choosing not to substitute counsel based on the alleged “complete breakdown
in communication.” Mitchell, 709 F.3d at 441-42. Again, the district court held
multiple hearings and heard from all interested parties, and we hold that it
was reasonable to conclude that Danielson could continue to effectively
represent Bounds.
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B. Application of Obstruction-of-Justice Sentence Enhancement
Section 3C1.1 of the Guidelines directs a two-level increase to a
defendant’s offense level if:
(1) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing of the
instant offense of conviction, and (2) the obstructive conduct
related to (A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense.
“A finding of obstruction of justice [under U.S.S.G. § 3C1.1] is a factual finding
that is reviewed for clear error.” United States v. Zamora-Salazar, 860 F.3d
826, 836 (5th Cir. 2017). “A factual finding is not clearly erroneous if it is
plausible in light of the record as a whole.” Id. (cleaned up). “In determining
whether an enhancement applies, a district court is permitted to draw
reasonable inferences from the facts, and these inferences are fact-findings
reviewed for clear error as well.” Id. (cleaned up).
This court has never considered application of the obstruction-of-justice
sentence enhancement in a case involving repetitive requests to substitute
counsel. Other circuits also have not directly addressed this issue. However,
the Third Circuit affirmed application of the enhancement when the
defendant—among other dishonest actions—“lied about his reasons for
wanting to change counsel and the nature of his dispute with his original
counsel.” United States v. Siddons, 660 F.3d 699, 708 (3d Cir. 2011).
The lack of relevant caselaw is instructive. Requests to substitute
counsel alone do not amount to obstruction of justice. A defendant’s failure to
work in harmony with court-appointed counsel may occur for a number of
reasons, such as anxiety related to the heavy consequences of a criminal
conviction, differences in personality, and incompatible communication styles.
District courts must be cautious not to punish defendants for their distrust of
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the criminal justice system or their lack of knowledge related to the procedures
applied therein. District courts must also avoid applying the obstruction-ofjustice sentence enhancement in a manner that will discourage defendants
from actively participating in their own defenses and asserting their
constitutional right to effective assistance of counsel. Indeed, application note
2 to U.S.S.G. § 3C1.1 specifically cautions that “[t]his provision is not intended
to punish a defendant for the exercise of a constitutional right.”
In this case, however, the district court did not base its decision to apply
the obstruction-of-justice sentence enhancement on the defendant’s repeated
requests for substitute counsel. Instead, the district court reiterated its factual
finding that Bounds intentionally obstructed justice by creating a “false,
contrived conflict” with his attorney. The district court found that Bounds had
taken “extraordinary steps” in order to disrupt the judicial proceedings. This
factual finding was not made after the fact at the sentencing hearing to justify
application of the sentence enhancement. Rather, the finding was initially
made at one of several hearings on the issue of whether to substitute counsel,
where the district court had the benefit of assessing the credibility of all
interested parties. Given the deference afforded to factual findings, especially
those based on credibility determinations, we cannot say that the district court
clearly erred. Therefore, we AFFIRM.
Herrera
Herrera appeals the district court’s denial of her motion to suppress
evidence obtained from a search of two cell phones found in her possession.2
She alleges that there was no probable cause for a search warrant because the
facts in the affidavit supporting the search warrant were stale and the affidavit
2 Herrera also joins in Heaslet’s appeal of the district court’s refusal to strike
witness Leslie Holliday’s testimony. That issue is addressed in the next Section.
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supporting the search warrant lacked any evidence establishing a nexus
between her cell phones and ongoing drug activity. She also argues that the
good faith exception to the exclusionary rule should not apply. We AFFIRM.
I. Summary of Relevant Facts and Proceedings
In 2015, the DEA and Homeland Security began investigating
allegations that Herrera had been distributing meth since October 2014. On
June 30, 2016, she was arrested. At the time of her arrest, Herrera possessed
two cell phones—an LG phone and an Alcatel phone, which the government
seized.
On July 5, the government applied for a warrant to search the phones.
The search warrant application contained an affidavit from Special Agent
Perry Moore (“Moore”), a DEA Task Force Officer with the Fort Worth Police
Department. In it, Agent Moore states that based on his knowledge, training,
and expertise in investigating narcotics offenses, “drug traffickers utilize
multiple cellular telephones to conduct drug trafficking business,” and
“communicate via traditional phone calls, and the sending/receiving of
electronic communications via multimedia message service (MMS) and short
message service (SMS) messages.” He further states:
In 2014, Agents/Officers received information that Nicole
HERRERA was currently trafficking multiple ounce quantities of
crystal methamphetamine in the Fort Worth, Texas area. Co
conspirator Sarah Kirkpatrick identified Nicole HERRERA as a
methamphetamine distributor who she knew was supplying multi
ounce quantities of methamphetamine to her boyfriend, another
co-conspirator. Sarah Kirkpatrick stated that in 2015 on multiple
occasions she traveled with her boyfriend to meet Nicole
HERRERA and receive four (4) ounce quantities of
methamphetamine from Nicole HERRERA. Co-conspirator Audra
BOWDEN confirmed that Nicole HERRERA was involved in
distributing methamphetamine. Audra BOWDEN confirmed that
based on her participation in the conspiracy and through
conversations that [she knew that] Sarah KIRKPATRICK and her
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boyfriend were
HERRERA.
receiving
methamphetamine
from
Nicole
The search warrant application did not report that Sarah Kirkpatrick’s
boyfriend, Robert Everhart (“Everhart”), was arrested in June 2015.
On June 28, 2016, a magistrate judge approved the warrant. The
government searched Herrera’s two phones. Prior to trial, Herrera filed a
motion to suppress the text messages recovered from the phone. Her motion
was denied after a hearing, and the government admitted a two-page exhibit
at trial displaying some of the text messages retrieved from the LG and Alcatel
phones.
II. Analysis
“When examining a district court’s ruling on a motion to suppress, we
review questions of law de novo and factual findings for clear error, viewing
the evidence in the light most favorable to the prevailing party.” United States
v. Ganzer, 922 F.3d 579, 583 (5th Cir. 2019) (cleaned up). “A factual finding is
not clearly erroneous as long as it is plausible in light of the record as a whole.”
United States v. McKinnon, 681 F.3d 203, 207 (5th Cir. 2012) (quoting United
States v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010)). In cases where the
government obtained a warrant, “[a] magistrate’s determination of probable
cause is entitled to great deference by reviewing courts.” United States v. Allen,
625 F.3d 830, 840 (5th Cir. 2010).
This court considers probable cause questions in “two stages.” United
States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003). First, the court determines
“whether the good-faith exception to the exclusionary rule ... applies. If it does,
[the court] need not reach the question of probable cause for the warrant unless
it presents a novel question of law, resolution of which is necessary to guide
future action by law enforcement officers and magistrates.” Id. (cleaned up).
Herrera does not argue that this case presents a novel question of law.
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“Under the good-faith exception, evidence obtained during the execution
of a warrant later determined to be deficient is admissible nonetheless, so long
as the executing officers’ reliance on the warrant was objectively reasonable
and in good faith.” Id. Herrera provides two reasons why the good faith
exception should not apply in this case: (1) Agent Moore’s failure to inform the
court that Everhart was incarcerated in June 2015 evidenced recklessness in
preparing the affidavit, and (2) the warrant was based on an affidavit that was
facially deficient in terms of its particularity.
The good-faith exception does not apply where the magistrate judge “was
misled by information in an affidavit that the affiant knew was false or would
have known except for reckless disregard of the truth.” Id. at 399—400 (quoting
United States v. Webster, 960 F.2d 1301, 1307 n.4 (5th Cir. 1992)). Material
omissions are treated similarly. See United States v. Tomblin, 46 F.3d 1369,
1377 (5th Cir. 1995). Herrera asserts that inclusion of Everhart’s arrest in the
affidavit was necessary to alert the magistrate judge to the fact that Herrera’s
alleged participation in drug trafficking activities was not ongoing. However,
nothing in the affidavit suggests that Herrera continued selling drugs to
Everhart at any time after 2015. Therefore, the omission did not render the
affidavit misleading.
The good-faith exception is also unavailable “where the warrant is based
on an affidavit so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable.” Payne, 341 F.3d at 399-400 (quoting
Webster, 960 F.2d at 1307 n.4). “Bare bones affidavits typically contain wholly
conclusory statements, which lack the facts and circumstances from which a
magistrate can independently determine probable cause.” United States v.
Pope, 467 F.3d 912, 920 (5th Cir. 2006) (cleaned up). The affidavit in this case
was not bare bones. It included facts and circumstances from which the
magistrate judge could have independently determined that probable cause
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existed. Specifically, the affidavit named two co-conspirator witnesses (Sarah
Kirkpatrick and Audra Bowden) who identified Herrera as having sold a
precise quantity (four ounces) of meth on multiple occasions in a certain year,
and Agent Moore explained why his experience as a narcotics officer led him
to believe that Herrera’s phones likely contained evidence of that drug
trafficking.
Because we find that application of the good faith exception is
appropriate in this case, we need not decide whether there was probable cause
for the warrant.
Heaslet and Herrera
Heaslet and Herrera jointly assert that the district court violated their
Sixth Amendment right of confrontation by allowing witness Leslie Holliday
(“Holliday”)
to invoke the Fifth Amendment privilege against self
incrimination after she allegedly waived it on direct examination. We
AFFIRM.
I. Summary of Relevant Facts and Proceedings
On the second day of trial, the government called co-conspirator witness
Holliday to the stand. The government began by asking Holliday questions
about her criminal history. She testified that she had been arrested several
weeks prior with meth in her possession, that she was hoping to get a lesser
charge in exchange for her cooperation, and that she had twenty or so felony
convictions, largely for credit card abuse and possession of meth. Thereafter,
counsel for the government proceeded to ask her about her involvement in the
conspiracy.
On cross-examination, counsel for Heaslet confirmed that Holliday had
“20 felony convictions.” He elicited acknowledgement from Holliday that
“credit card abuse is a crime of moral turpitude,” and Holliday admitted that
she—not “someone else”—was stealing credit cards. Then, after pressing her
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on the value and weight of drugs involved in the deals she testified to
witnessing, Heaslet’s counsel asked about her own history with drugs. Holliday
admitted to being “involved with” a number of transactions in which the
amount of meth “far exceed[ed] 30 or 40 kilos.”
Herrera’s counsel also asked Holliday about her criminal history. She
admitted to “lying and stealing,” to receiving sentence enhancements for
committing credit card offenses against the elderly, and to being “a habitual
criminal.” Herrera’s counsel also asked her about her arrest on August 11,
2016. Holliday admitted that she was arrested in a Walmart parking lot on
that day and that she had meth in her right hand at the time. She admitted
that the police had searched her car and found more meth. Only when counsel
asked her whether she also had a fake ID in her right hand did she ask to
consult with her attorney. Holliday’s attorney advised her to “plead the Fifth”
regarding her pending cases. When Holliday refused to answer more questions
about her arrest on Fifth Amendment grounds, Heaslet’s attorney objected on
Confrontation Clause grounds. Herrera’s counsel joined in this objection. The
district court overruled the objections.
II. Analysis
This court reviews claims of Sixth Amendment Confrontation Clause
violations de novo and subject to a harmless-error analysis. United States v.
Templeton, 624 F.3d 215, 223 (5th Cir. 2010). “Once the Confrontation Clause
of the Sixth Amendment has been satisfied, limitation of cross-examination is
reviewed for abuse of discretion.” United States v. Roussel, 705 F.3d 184, 194
(5th Cir. 2013).
The Confrontation Clause provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right... to be confronted with the witnesses against
him.” U.S. Const, amend. VI; see Crawford v. Washington, 541 U.S. 36, 42
(2004). “The main and essential purpose of confrontation is to secure for the
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opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308,
315-16 (1974). However, “[t]he district court has ‘wide latitude insofar as the
Confrontation Clause is concerned to.impose reasonable limits on such crossexamination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.’” United States v. Skelton, 514 F.3d 433,
439 (5th Cir. 2008) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986)). “The Confrontation Clause ... is satisfied where defense counsel has
been ‘permitted to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.’” United
States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993) (quoting Davis, 415 U.S. at
318). To establish a Confrontation Clause violation, “the defendant need only
show that ‘a reasonable jury might have received a significantly different
impression of the witness’s credibility had defense counsel been permitted to
pursue his proposed line of cross-examination.’” Templeton, 624 F.3d at 223
(quoting Skelton, 514 F.3d at 439).
The record illustrates that a reasonable jury would not have had a
significantly different impression of Holliday if Heaslet’s attorney had been
permitted to ask more questions about her August 11, 2016 arrest. The only
testimony that was apparently excluded on Fifth Amendment grounds related
to Holliday’s possession of a fake ID. The jury heard that Holliday had received
twenty felony convictions for crimes of moral turpitude, that Holliday stole
credit cards and received an enhancement for targeting elderly victims, and
that Holliday had a prolonged association with drug dealers. Holliday even
admitted that she was a “habitual criminal.” With respect to Holliday’s August
11, 2016 arrest, the jury heard Holliday admit that she was holding meth, had
meth in her car, and had been arrested for something. Based on all of that
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information, the additional fact of fake ID criminality would not have changed
the jury’s perception of her. Therefore, we AFFIRM.
Skaggs
Skaggs appeals the district court’s denial of his request for funds under
the Criminal Justice Act (“CJA”) to hire an investigator. He also alleges that
the district court violated his Sixth Amendment rights to confrontation,
compulsory process, and to present a complete defense when it barred him from
asking witness Jessica Judge (“Judge”) and two law enforcement witnesses
about an alleged inconsistency between Judge’s direct testimony and a DEA
report summarizing an interview of her. Skaggs also appeals the district
court’s denial of his motion for acquittal. Finally, based on all of these alleged
errors, Skaggs asserts that the doctrine of cumulative error should be applied.
We AFFIRM.
I. Summary of Relevant Facts and Proceedings
A. Request for Funds to Hire an Investigator
Skaggs received appointed counsel under the CJA. Skaggs’s attorney
filed an application with the district court for CJA funds to hire a private
investigator. The motion stated that an investigator could locate and
investigate co-conspirators, locate and obtain relevant documents, and assess
what value discovered materials might have if introduced at trial. The district
court denied the motion because it failed to allege facts that would indicate a
particular need for an investigator.
Skaggs’s attorney then filed a Motion to Reconsider, adding the fact that
counsel had a difficult time locating witness Kim Mackenzie (“Mackenzie”), an
individual who was referenced in the discovery materials. The court held an ex
parte telephone conference with Skaggs’s attorney to discuss the motion.
Skaggs’s attorney stated that Mackenzie was an ex-girlfriend of Skaggs who
“may have some insight, according to my client, that may be useful to him [at]
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trial.” When pressed on what, specifically, Mackenzie might say on Skaggs’s
behalf, Skaggs’s attorney noted only that there were “some text messages
between them that could be construed a number of different ways.” He wanted
to hire an investigator to go to her home in Brownwood, which he was not
comfortable doing himself.
The district court ultimately denied the motion stating, “I noticed you’ve
already filed your witness list and don’t have her named on it, so apparently
that’s not something that has been viewed to be a crucial thing in the
representation of your client.” “[I]f you really [feel] like, after some further
inquiry, that [Mackenzie is] a crucial witness, then I’ll entertain on an ex parte
basis something else you might want to file.” Skaggs’s attorney never filed a
subsequent motion.
B. Limitations of Cross-Examination
Judge was a government witness who interviewed with DEA agents and
testified at trial in hopes of receiving a sentencing reduction. The DEA report
of her interview says, “Judge identified [three redacted names] as the partners
of Billy Skaggs, and as methamphetamine customers of hers. Judge stated that
from April 2015 to June 2015, [three redacted names] had obtained eight (8)
ounces of methamphetamine from Judge on at least three (3) occasions.”
At trial, Judge testified that she met Skaggs in mid-2014. She testified
that while she was living with a woman named Amanda Means (“Means”),
Skaggs would come in from Brownwood to buy meth from her. She testified
that the first quantity she sold to him was “maybe an ounce or two.” As time
progressed, according to Judge, Skaggs started buying a pound of meth from
her approximately “[e] very 4 to 6 weeks.” Judge testified that Skaggs continued
to purchase similar amounts of meth from her with similar frequency when
she moved to a new place “off of Las Vegas Trail.” The next year, after Judge
had changed suppliers, Skaggs continued to purchase meth from her, but “he
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started only getting half a pound.” Judge testified that the frequency of
purchases remained the same. Judge also testified that she introduced Skaggs
to Audra Bowden (“Bowden”), a supplier. She testified that the two met each
other and engaged in a transaction involving a half pound of meth. Judge
testified that the last time she remembered interacting with Skaggs about
drugs was in the summer of 2015, but the planned transaction never actually
took place.
On cross-examination, Skaggs’s attorney asked Judge whether she
interviewed with DEA agents, and she said she had. Rather than delve into
the contents of those interviews, however, defense counsel turned to Judge’s
drug history. He asked about the first time she used meth, the first time she
sold meth, whether she had used other drugs (including marijuana, cocaine,
crack, heroin, and ecstasy), whether she had been to treatment, whether she
had relapsed, and again when she began buying and selling drugs. At that
point, the district court interrupted to urge defense counsel to move on. Despite
the warning, defense counsel continued to ask Judge about her drug use. After
being interrupted by the district court a second time, defense counsel began
asking Judge about her motivation for testifying. Judge admitted that she was
hoping to receive a reduced sentence in exchange for her testimony. When
defense counsel asked, “You’re pretty desperate to lower your sentence; is that
right?” the district court told him to move on to something else. Again, defense
counsel ignored the district court and continued to ask Judge about her desire
to obtain a reduced sentence. The district court interrupted defense counsel for
a fourth time to instruct him to move on. When defense counsel proceeded to
ask Judge more questions about her motivation for testifying, the district court
told defense counsel to be seated.
Later, Skaggs’s attorney attempted to question DEA Agents McCurdy
and Crum about Judge’s interview with their agency. The district court
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sustained the government’s objection to these questions as outside the scope of
direct. Outside the presence of the jury, Skaggs’s attorney asserted that Judge
had testified to “a different quantity than the amount she provided in her
interview,” and he wanted to impeach her.
C. Motion for Acquittal
In addition to Judge’s testimony, the government provided evidence from
three other witnesses against Skaggs. Means identified Skaggs as one of
Judge’s “frequent” meth customers. Means testified that Skaggs purchased
“larger quantities than Judge normally had,” such that Judge would normally
have Skaggs stay at her apartment “while she would bring it back or have
someone come to the apartment and supply it.” A cooperating witness named
Sarah Kirkpatrick (“Kirkpatrick”) also testified against Skaggs. Kirkpatrick
testified that she knew Judge and met Skaggs through Judge. She testified
that when Skaggs came into town to buy drugs from Judge, Judge would “get
his money and then she’d go and she’d come back with [the drugs].” Finally,
DEA agent Brian Finney testified against Skaggs. He primarily testified about
photos of drugs that were on Skaggs’s cell phone when he was arrested,
including one of a large chunk of meth that “appear[ed] to be multiple ounces.”
II. Analysis
A. Request for Funds to Hire an Investigator
This court reviews the denial of a request for CJA funds for an
investigator or expert under an abuse-of-discretion standard. United States v.
Hardin, 437 F.3d 463, 468 (5th Cir. 2006); United States v. Castro, 15 F.3d 417,
421 (5th Cir. 1994).
The Due Process Clause of the Fifth Amendment requires that a criminal
trial not be fundamentally unfair. United States v. Valenzuela-Bernal, 458 U.S.
858, 872 (1982). “[A] criminal trial is fundamentally unfair if the State
proceeds against an indigent defendant without making certain that he has
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access to the raw materials integral to the building of an effective defense.” Ake
v. Oklahoma, 470 U.S. 68, 77 (1985). “To implement this principle,” the Court
has identified the “basic tools of an adequate defense” and has “required that
such tools be provided to those defendants who cannot afford to pay for them.”
Id. (citing Britt v. North Carolina, 404 U.S. 226, 227 (1971)). Ake announced
three considerations relevant for determining which “basic tools” are required:
first, “the private interest that will be affected by the action of the State”;
second, “the governmental interest that will be affected if the safeguard is to
be provided”; and third, “the probable value of the additional or substitute
procedural safeguards that are sought, and the risk of an erroneous
deprivation of the affected interest if those safeguards are not provided.” Id.
“The private interest in the accuracy of a criminal proceeding ... is
almost uniquely compelling.” Id. at 78. Additionally, the government’s
financial burden here is low. Skaggs’s Motion to Reconsider requested only
$1,500. Nevertheless, we find that the district court did not abuse its discretion
in denying the request because Skaggs failed to illustrate that the contribution
of an investigator to his defense would have been anything but minimal. Even
assuming that an investigator would have been able to locate Mackenzie,
Skaggs did not articulate any specific insight Mackenzie might have been able
to provide. We also note that Skaggs did not include Mackenzie on his witness
list, and he never took up the district court’s invitation to file another ex parte
motion if it turned out that Mackenzie was a “crucial witness.” Based on the
circumstances and information available to the district court, we find no abuse
of discretion and AFFIRM.
B. Limitations of Cross-Examination
This court reviews claims of Sixth Amendment Confrontation Clause
violations de novo and subject to a harmless-error analysis. Templeton, 624
F.3d at 223. “Once the Confrontation Clause of the Sixth Amendment has been
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satisfied, limitation of cross-examination is reviewed for abuse of discretion.”
Roussel, 705 F.3d at 194.
Skaggs barely articulates an argument challenging the district court’s
interruption of his cross-examination of Judge, and certainly not a Sixth
Amendment one. Under the abuse-of-discretion framework, this court has held
that “trial judges retain wide latitude to impose reasonable limits on crossexamination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’s safety, or interrogation that is
repetitive or only marginally relevant.” Templeton, 624 F.3d at 223 (cleaned
up).
In this case, the district court interrupted Skaggs’s attorney long after
he had completed his brief questioning about the DEA report and well into his
repetitive lines of questioning about Judge’s criminal history and personal
drug use. The district court gave Skaggs’s attorney four separate warnings to
move on to new topics, which were ignored. When the district court finally told
Skaggs’s attorney to sit down, he complied without objection, offering no
indication that he intended to ask Judge about an inconsistency between her
direct testimony and the DEA report. On this record, the district court did not
abuse its discretion.
Skaggs also argues that the district court violated his Sixth Amendment
rights by precluding his counsel from asking Agent McCurdy and Officer Crum
about the alleged inconsistency between Judge’s verbal testimony and the
DEA’s report of her interview. This argument fails because there is no
inconsistency.
The DEA report does not discuss any statements that Judge made about
Skaggs. Rather, it states that Judge “identified [three redacted names] as the
partners of Billy Skaggs,” and that “from April 2015 to June 2015,” those
partners “had obtained eight (8) ounces of methamphetamine from Judge on
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at least three (3) occasions.” Even if the report could be read as referencing
Skaggs, there is still no inconsistency. On direct examination, Judge testified
that when she first met Skaggs in mid-2014, she was selling “one pound”
quantities to him but that “he started only getting half a pound” after he was
arrested toward the end of their drug relationship, which terminated in the
summer of 2015. “April 2015 to June 2015” would be an accurate
characterization of the later part of a relationship that extended from mid-2014
through summer 2015. Eight ounces is “half a pound.” Because there is no
inconsistency, there is no impeachment value in the testimony that Skaggs
was prevented from eliciting. Therefore, there was no Sixth Amendment
violation. We AFFIRM.
C. Motion for Acquittal
Because Skaggs preserved his challenge to the sufficiency of the evidence
by moving for acquittal under Federal Rule of Criminal Procedure 29, this
claim is reviewed de novo. United States v. Oti, 872 F.3d 678, 686 (5th Cir.
2017). This de novo review is highly deferential to the verdict. Id. “[T]he
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
To convict Skaggs of conspiracy to possess with intent to distribute 50
grams or more of meth, 21 U.S.C. § 846, the jury was required to find that:
(1) two or more persons agreed to possess meth with the intent to
distribute it;
(2) Skaggs knew of the unlawful purpose of the agreement;
(3) Skaggs joined in the agreement willfully, that is, with intent to
further its unlawful purpose;
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(4) the overall scope of the conspiracy involved at least 50 grams of
a mixture containing a detectable amount of meth;
(5) Skaggs knew or reasonably should have known that the scope
of the conspiracy involved at least 50 grams of a mixture
containing a detectable amount of meth.
See United States v. Franklin, 561 F.3d 398, 402 (5th Cir. 2009).
“[A] defendant may be convicted of a conspiracy if the evidence shows
that he only participated at one level of the conspiracy charged in the
indictment, and only played a minor role in the conspiracy.” United States v.
Posada-Rios, 158 F.3d 832, 858 (5th Cir. 1998). “The government does not have
to prove that the defendant knew all of the details of the unlawful enterprise
or the number or identities of all of the co-conspirators, as long as there is
evidence from which the jury could reasonably infer that the defendant
knowingly participated in some manner in the overall objective of the
conspiracy.” Id. However, “the government may not prove up a conspiracy
merely by presenting evidence placing the defendant in a climate of activity
that reeks of something foul.” United States v. Maltos, 985 F.2d 743, 746 (5th
Cir. 1992) (cleaned up).
Judge testified that she introduced Skaggs to Bowden, a supplier named
in the indictment. Specifically, Judge explained, “I called [Bowden] and asked
her if she could bring me some dope for my Brownwood people. She came and
she met him.” Judge testified that they engaged in a transaction involving half
a pound of meth. This testimony describes an agreement between Skaggs and
Bowden, a named co-conspirator, to possess with intent to distribute more than
50 grams of meth, and it, along with the other evidence admitted against
Skaggs, is enough to show that a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. We AFFIRM.
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D. Doctrine of Cumulative Error
“‘Cumulative error’ justifies reversal only when errors ‘so fatally infect
the trial that they violated the trial’s fundamental fairness.’” United States u.
Delgado, 672 F.3d 320, 344 (5th Cir. 2012) (quoting United States v. Fields, 483
F.3d 313, 362 (5th Cir. 2007)). Since we find that no error occurred, the doctrine
is inapplicable here.
Killough
Killough appeals the district court’s calculation of the quantity of drugs
attributable to him at sentencing and the substantive reasonableness of his
sentence. Because there was no information containing sufficient indicia of
reliability to support the district court’s calculation of drugs attributable to
Killough, we VACATE Killough’s sentence and REMAND for resentencing.
I. Summary of Relevant Facts and Proceedings
The presentence report (“PSR”) assigned Killough a base offense level of
43, as follows:
• 38 as base offense level pursuant to U.S.S.G. § 2D1.1 because the
offense was a violation of 21 U.S.C. § 846 and involved at least 45
kilograms of meth;
• +2 pursuant to U.S.S.G. § 2D1.1(b)(1) because a dangerous weapon
was possessed;
• +2 pursuant to U.S.S.G. § 2D1.1(b)(5)(A) and (B) because the offense
involved the importation of meth and the defendant was not subject to a
mitigating role adjustment;
• +2 pursuant to U.S.S.G. § 3C1.1 for obstruction of justice.
This calculation actually yielded a subtotal of 44, which was reduced to
43 because that is the maximum offense level under the Guidelines. Killough’s
criminal history category was V. The guideline imprisonment range was life.
Killough filed a written objection to the quantity of drugs attributed to
him in the PSR. The PSR held Killough accountable for 56.6 kilograms of meth.
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Of that 56.6-kilogram total, 54 kilograms were attributable to Killough based
on one-kilogram amounts that Killough allegedly delivered to an individual
named Alicia Priest (“Priest”) over a period of months. Paragraph 14 of the
PSR detailed those transactions:
From December 4, 2013, through April 14, 2014, Killough and an
unidentified coconspirator brought 1,000 grams (1 kilogram) of
methamphetamine to Priest’s residence three times, each week, for
a conservative total of 54,000 grams (54 kilograms) of
methamphetamine (3,000 grams, per week, multiplied by 18
weeks). Additionally, Priest witnessed Killough with 1/3 kilogram
(333.3 grams) of methamphetamine on six to seven occasions at
her residence, for a conservative total of 2,000 grams (2 kilograms)
of methamphetamine (333.3 grams multiplied by six occasions).
On one occasion, Killough and the unnamed coconspirator
packaged 4 kilograms (4,000 grams) of methamphetamine.
Killough and the unidentified male utilized Priest’s residence to
weigh,
“breakdown,” and package the kilograms of
methamphetamine for distribution.
Killough’s objection called attention to his pretrial stipulation with the
government, which stated, in relevant part: “Kevin Killough was incarcerated
locally from January 14, 2014 until April 12, 2014.”
The government’s response asserted, “To the extent Priest’s information
is incorrect as to the actual date ranges, such does not affect the reliability of
her information about the defendant’s drug dealing activities with Eloy Salas”
(the unnamed co-conspirator). According to the government, Priest and two
other
witnesses—Alisha
Feeney
(“Feeney”)
and Haldon
Stikeleather
(“Stikeleather”)—“generally describe the same distribution activity involving
Eloy Salas (“Salas”), the defendant, and others, including the general
timeframe of between Fall 2013 and January 2014.” The government
contended, “[T]he activity itself is corroborated when read in context with the
information provided by Feeney and Stikeleather.”
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The probation officer filed an addendum to the PSR acknowledging the
defendant’s objection but adopting the government’s response.
At the sentencing hearing, Killough’s attorney renewed his objection to
paragraph 14 of the PSR. The district court stated, “The probation officer
accepted that objection in part and corrected the dates, so I think that takes
care of that objection.” The district court explained, “Obviously those dates in
the Presentence Report, paragraph 14, are incorrect dates and . . . somebody’s
memory was defective on the date . . . But otherwise, the allegations in
paragraph 14 are consistent with the other information, so I’m going to
overrule that objection.”
Ultimately, the district court sentenced Killough to life imprisonment,
and Killough objected to the sentence as substantively unreasonable.
II. Analysis
“Sentences based upon erroneous and material information or
assumptions violate due process.” United States v. Tobias, 662 F.2d 381, 388
(5th Cir. 1981). “The district court’s calculation of the quantity of drugs
involved in an offense is a factual determination.” United States v. Betancourt,
422 F.3d 240, 246 (5th Cir. 2005) (quoting United States v. Alford, 142 F.3d
825, 831 (5th Cir. 1998)). “Factual findings regarding sentencing factors are
entitled to considerable deference and will be reversed only if they are clearly
erroneous.” Id. (cleaned up). “The proper remedy where a trial court relies upon
erroneous information or assumptions is to remand to the district court for a
new sentencing hearing.” Tobias, 662 F.2d at 388.
A district court “may extrapolate the quantity [of drugs] from any
information that has sufficient indicia of reliability to support its probable
accuracy.” United States v. Dinh, 920 F.3d 307, 313 (5th Cir. 2019) (quoting
United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006)). “Generally, a PSR
‘bears sufficient indicia of reliability to be considered as evidence by the
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sentencing judge in making factual determinations.”’ United States v. Harris,
702 F.3d 226, 230 (5th Cir. 2012) (quoting United States v. Nava, 624 F.3d 226,
231 (5th Cir. 2010)). However, “mere inclusion in the PSR does not convert
facts lacking an adequate evidentiary basis with sufficient indicia of reliability
into facts a district court may rely upon at sentencing.” Id. at 230 n.2. “If the
factual recitation in the PSR lacks sufficient indicia of reliability, then it is
error for the district court to consider it at sentencing.” United States v.
Zuniga, 720 F.3d 587, 591 (5th Cir. 2013) (cleaned up). Contrariwise, “[w]hen
faced with facts contained in the PSR that are supported by an adequate
evidentiary basis with sufficient indicia of reliability, a defendant must offer
rebuttal evidence demonstrating that those facts are ‘materially untrue,
inaccurate or unreliable.”’ Harris, 702 F.3d at 230 (quoting United States v.
Huerta, 182 F.3d 361, 364-65 (5th Cir. 1999)).
In this case, the PSR stated that “from December 4, 2013, through April
14, 2014, Killough . . . brought 1,000 grams (1 kilogram) of methamphetamine
to Priest’s residence three times, each week, for a conservative total of 54,000
grams (54 kilograms) of methamphetamine (3,000 grams, per week, multiplied
by 18 weeks).” Both parties, and the district court, agree that that statement
is false. Killough was incarcerated from January 14, 2014 until April 12,
2014—more than 67% of the time that the PSR said he was bringing meth to
Priest’s residence. This patently incorrect statement cannot form the basis of
a drug-quantity estimate.
The government’s assertion that there was, nevertheless, a plausible
factual basis for concluding that Killough possessed those 54 kilograms of meth
is perplexing. The government cites the following facts to support that claim:
• “Killough and Salas used Alicia Priest’s residence to weigh, ‘breakdown,’
and package kilogram quantities of methamphetamine for
redistribution”;
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• “Killough and Salas came to Priest’s residence between 20 and 30 times,
and they were ‘always together’”;
• “Killough
and
Salas
brought
one-kilogram
quantities
of
methamphetamine to her home three times a week for repackaging.”
The first and third bullet points are pieces of information that Priest gave in
describing the December 4, 2013 to April 14, 2014 period—that is, the period
of time substantially overlapping with the period of time during which
Killough was incarcerated (January 14, 2014 to April 12, 2014). The second
bullet point refers to an unspecified period of time. Accordingly, these
additional facts are inapposite to the question of whether there is other
evidence establishing that Killough possessed 54 kilograms of meth.
The government also argues that the “statements of Alisha Feeney and
Haldon Stikeleather” support the PSR’s 54-kilo estimate. Crediting all of these
statements pertaining to Killough in the DEA investigation report, however,
only yields evidence of 109.125 ounces. No evidence identified to us, aside from
Priest’s unreliable estimate, accounts for the remaining 50.91 kilograms.
This court dealt with a somewhat analogous situation in United States
v. Rogers, 1 F.3d 341 (1993). In that case, the PSR attributed one pound of
amphetamine to the defendant based on statements of confidential informants
who purported to see the defendant with drugs on dates when the defendant
was incarcerated. Id. at 344. However, reducing the amount of drugs attributed
to the defendant by one pound would not have resulted in any change in the
base offense level and sentencing guidelines. Id. at 343. Therefore, the court
only considered the question of whether the discrepancy cast doubt on all of
the statements in the PSR that were obtained from confidential informants.
Id. at 343—44. Because the discrepancy did not directly impact the report of
approximately 45 ounces—the vast majority of drugs attributed to the
defendant—by one confidential informant, the defendant’s own version of
events corroborated that report of 45 ounces, and the extensive government
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investigation corroborated many of the other details of the drug distribution
scheme, the court found no clear error. Id. at 344. Here, the patently incorrect
statement in the PSR standing alone accounts for a meaningful amount of the
total drugs attributed to Killough. Because patently incorrect statements
necessarily “lack[] sufficient indicia of reliability, [] it is error for the district
court to consider [them] at sentencing.” Zuniga, 720 F.3d at 591 (cleaned up).
Corroboration of other aspects of the drug distribution scheme by the
government’s investigation does not change this analysis.
Since there is no information with sufficient indicia of reliability to
support the district court’s conclusion that 56.6 kilograms of meth should be
attributed to Killough, this finding constituted clear error. Consequently, we
VACATE Killough’s sentence and REMAND for resentencing. In light of this
holding, we need not address Killough’s alternative claim that his sentence is
substantively unreasonable.
Gentry
Gentry appeals the district court’s denial of his motion for acquittal. He
also argues that the district court erred in calculating the quantity of drugs
attributable to him at sentencing, and he appeals the district court’s
application of two sentence enhancements—one for possession of a dangerous
weapon under U.S.S.G. § 2D1.1(b)(1) and one for the importation of drugs
• under U.S.S.G. § 2D1.1(b)(5). We AFFIRM.
I. Summary of Relevant Facts and Proceedings
The PSR assigned Gentry a base offense level of 40, as follows:
• 36 as base offense level pursuant to U.S.S.G. § 2D1.1 because the
offense was a violation of 21 U.S.C. § 846 and involved between at least
15 kilograms and less than 45 kilograms of meth;
• +2 pursuant to U.S.S.G. § 2D1.1(b)(1) because a dangerous weapon
was possessed;
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• +2 pursuant to U.S.S.G. §§ 2D1.1(b)(5)(A) and (B) because the
offense involved the importation of meth and the defendant was not
subject to a mitigating role adjustment.
Gentry’s criminal history category was III. The resulting guideline
imprisonment range was 360 months to life. However, because the statutorily
authorized maximum sentence is 40 years, the applicable guideline sentencing
range became 360 to 480 months.
The PSR attributed 24.21 kilograms of meth to Gentry based on the
following interactions:
• Between 2011 and February 2014, Shanda Hawkins (“Hawkins”) and
R.V. Kerr delivered one ounce of meth to Gentry daily, resulting in
approximately 772 ounces of meth;
• Sometime after February 2014, Hawkins, Gavin Seguin, and Edwin
Romine delivered four ounces of meth to Gentry on two occasions, two
ounces of meth to Gentry on 20-25 occasions, one ounce of meth to Gentry
on ten occasions, and half an ounce of meth to Gentry on 15-20 occasions,
resulting in 70.5 ounces of meth;
• On two unspecified occasions, Silton Goutreaux supplied Gentry with
two ounces and a half ounce of meth, respectively, resulting in 2.5 ounces
of meth;
• On four unspecified occasions, Gentry received one ounce of meth from
Tonya Blackwood (“Blackwood”), resulting in four ounces of meth;
• From late 2015 to 2016, Leslie Payne (“Payne”) supplied Gentry with two
ounces of meth on one occasion, one ounce of meth on one occasion, and
a half ounce of meth on three occasions, resulting in 4.5 ounces of meth;
• In late 2015 or early 2016, Gentry obtained a half ounce of meth from an
unidentified coconspirator and one-sixteenth an ounce of meth from
William Orozco, resulting in 0.5625 ounces of meth.
Application of the dangerous weapon sentence enhancement was based
on statements of three individuals who observed Gentry with a firearm. Payne
observed Gentry with a firearm on one occasion; Candace Whitten (“Whitten”)
observed Gentry use a firearm in conjunction with meth distribution; and
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Tiffany Bradberry, who observed Gentry in possession of meth on at least 20
occasions, also observed the defendant possess a firearm.
The importation sentence enhancement was supported by the following
statement in the PSR addendum:
During the investigation of Hawkins and Blackwood, agents
identified their sources of supply which distributed
methamphetamine that had been imported from Mexico. The
offense involved the distribution of methamphetamine, and the
importation of methamphetamine from Hawkins’s and
Blackwood’s sources of supply was in furtherance of the criminal
activity.
Gentry filed a written objection to the quantity of drugs attributed to
him, application of the dangerous weapon sentence enhancement, and
application of the importation sentence enhancement. Specifically, he objected
that the calculation of meth attributed to him and the application of the
sentence enhancements were based on unsupported co-defendant statements.
He also noted that he was incarcerated at various times between January 2014
and April 2016.
The probation officer filed an addendum to the PSR acknowledging that
Gentry was incarcerated for at least five months from June to November 2013,
a time during which the PSR attributed 150 ounces of meth to him. Subtracting
these 150 ounces of meth reduced the total amount of meth attributed to
Gentry to 20 kilograms, still resulting in a base offense level of 36.
At sentencing, Gentry renewed his written objections to the PSR. When
the district court asked whether he had any evidence he wanted to offer, he
said no. The district court then overruled the objections and adopted the
findings in the PSR and PSR addendum.
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II. Analysis
A. Motion for Acquittal
Gentry raises this claim via a heading in his brief but provides no
substantive argument on the issue. “Failure of an appellant to properly argue
or present issues in an appellate brief renders those issues abandoned.” United
States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992). This is the case when
an appellant “fails ... to make any argument whatsoever to support [the]
contention” that the evidence was insufficient to support the conviction. Id.
Gentry has abandoned this claim.
B. Calculation of Drugs Attributable to Gentry at Sentencing
As previously discussed, “[t]he district court’s calculation of the quantity
of drugs involved in an offense is a factual determination” reviewed for clear
error. Betancourt, 422 F.3d at 246 (quoting Alford, 142 F.3d at 831).
“Generally, a PSR ‘bears sufficient indicia of reliability to be considered as
evidence by the sentencing judge in making factual determinations.’” Harris,
702 at 230 (quoting Nava, 624 F.3d at 231). “When faced with facts contained
in the PSR that are supported by an adequate evidentiary basis with sufficient
indicia of reliability, a defendant must offer rebuttal evidence demonstrating
that those facts are ‘materially untrue, inaccurate or unreliable.’” Id. at 230
(quoting Huerta, 182 F.3d at 364—65).
Gentry’s argument that the calculation of meth attributable to him is
erroneous because it relies on uncorroborated statements made by co
defendants who did not testify at trial is unconvincing. The district court may
consider any “relevant information without regard to its admissibility under
the rules of evidence applicable at trial, provided that the information has
sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. §
6A1.3.
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At oral argument, Gentry further argued that certain statements in the
PSR attributing drugs to him are unreliable because the individuals
responsible for them also attributed drugs to Gentry at times when he was
incarcerated. The PSR addendum subtracted the 150 ounces of meth attributed
to Gentry in the original PSR at times when he was incarcerated. To the extent
that Gentry now disputes the reliability of other drug attribution statements
not directly undermined by his incarceration, his broad objections re-urged at
the sentencing hearing and supported by no evidence were insufficient to
“demonstrate!] that those facts [were] ‘materially untrue, inaccurate or
unreliable.”’ Harris, 702 F.3d at 230 (quoting Huerta, 182 F.3d at 364—65); see
also United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010) (finding that
objections are not evidence sufficient to rebut information in the PSR
containing sufficient indicia of reliability); United States u. Thomas, 57 F.
App’x 212, 2003 WL 151204, at *2—*3 (5th Cir. 2003). Finding no clear error,
we AFFIRM.
C. Application of Dangerous Weapon Sentence Enhancement
U.S.S.G. § 2D1.1(b)(1) allows for a two-level increase in the base offense
level “[i]f a dangerous weapon (including a firearm) was possessed.” “The
enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. §
2D1.1(b)(1) cmt. n.11(A).
The decision to apply U.S.S.G. § 2D1.1(b)(1) is a factual one, reviewed
only for clear error. United States v. Eastland, 989 F.2d 760, 769 (5th Cir.
1993). “The district court’s legal interpretation of the Guidelines are reviewed
de novo.” United States v. Paulk, 917 F.2d 879, 882 (5th Cir. 1990) (cleaned
up). The district court may consider any “relevant information without regard
to its admissibility under the rules of evidence applicable at trial, provided that
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the information has sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3.
Here, the district court properly adopted the findings in the PSR and
PSR addendum, including Whitten’s observation of Gentry using “a firearm in
conjunction with methamphetamine distribution.” This was sufficient to
support application of U.S.S.G. § 2D1.1(b)(1). See Paulk, 917 F.2d at 882. We
AFFIRM.
D. Application of Drug Importation Sentence Enhancement
U.S.S.G. § 2D1.1(b)(5) instructs courts to increase the base offense level
by two if “the offense involved the importation of methamphetamine . . . .” It
applies “when the offense involved the importation of methamphetamine, even
if the defendant did not know that the methamphetamine was imported.”
United States v. Serfass, 684 F.3d 548, 554 (5th Cir. 2012) (cleaned up).
In
applying
U.S.S.G.
§
2D1.1(b)(5),
the
district court’s
legal
interpretations of the Guidelines are reviewed de novo, and its factual findings
are reviewed for clear error. Id. at 550. The district court may consider any
“relevant information without regard to its admissibility under the rules of
evidence applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3.
This court has previously found evidence similar to that present in this
case sufficient to uphold application of the enhancement. See United States u.
Piper, 912 F.3d 847, 860 (2019) (upholding application of the enhancement
against Piper based on a DEA finding that Rosales received meth imported
from Mexico and Piper bought large quantities of meth from Rosales). We
AFFIRM.
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Short
Short appeals the district court’s denial of his motion for acquittal and
the district court’s calculation of the quantity of drugs attributable to him at
sentencing. We AFFIRM.
I. Summary of Relevant Facts and Proceedings
A. Motion for Acquittal
The evidence presented against Short at trial primarily consisted of the
testimony of two witnesses: Holliday and Royce Newton (“Newton”). Holliday
testified that she met Short in August 2015 and they began to have a romantic
relationship. She testified that they lived together in various hotels, and when
she first began living with Short, he was receiving and distributing one to three
ounces of meth consistently. Holliday also testified that during her time with
Short, Heaslet, Newton, and Short—all members of the Aryan Brotherhood of
Texas—would meet up about every other day to put money together for a
couple kilograms of drugs. Holliday was often present and watched them count
the money, up to $35,000. She testified that she and Short broke up in
December 2015.
Newton testified that he met Short in June or July of 2015. He testified
that he would meet up with Short, primarily at hotels, to get large quantities
of drugs by pooling money. They started out getting half a kilogram, but later,
they would put enough money together for a full kilogram.
B. Calculation of Drugs Attributable to Short at Sentencing
The PSR assigned Short a base offense level of 43, as follows:
• 38 as base offense level pursuant to U.S.S.G. § 2D1.1 because the
offense was a violation of 21 U.S.C. § 846 and involved at least 90,000
kilograms of meth;
• +2 pursuant to U.S.S.G. § 2D1.1(b)(5) because the offense involved
imported marijuana;
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• +2 pursuant to U.S.S.G. § 2Dl.l(b)(12) because the defendant
maintained premises for the purpose of manufacturing or distributing a
controlled substance;
• +2 pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous
weapon in connection with the offense.
This calculation actually yielded a subtotal of 44, which was reduced to 43
because that is the maximum offense level under the Guidelines. Short’s
criminal history category was V, and the guideline imprisonment range was
life.
The PSR held Short accountable for 62.3 kilograms of meth and six
gallons of gamma-Hydroxybutric acid (“GHB”). The meth consisted of the
following:
• Three kilograms that Short received in one-kilogram quantities on three
to four occasions from Shawn Cropp (“Cropp”) and Stephanie Hatley
(“Hatley”) and 737.1 grams that Short, Payne, Cropp, Bounds, and an
unknown female “broke down” in a hotel room in Fort Worth;
• 2.7 kilograms that Short received in three- to six-ounce quantities daily
from Jose Pablo Morales (“Morales”) through Herrera during a three- to
four-week period beginning in September 2015;
• 52.5 kilograms that Short, Ashley Simpson (“Simpson”), Cropp, Hatley,
Heaslet, Brittany Tylka, and Newton received in three- to four-kilogram
quantities every other day from Herrera and Morales for over one month;
• 3.4 kilograms that he received in 1.5-pound quantities from Douglas
Faulk on five occasions in October 2015.
The GHB consisted of six gallons Eric Overstreet observed Short and Simpson
in possession of on one occasion. Short filed a written objection to the quantity
of drugs attributed to him. Specifically, he objected that the calculations were
based on “approximate time periods and unknown locations.”
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II. Analysis
A. Motion for Acquittal
Short, like Skaggs, preserved his challenge to the sufficiency of the
evidence by moving for acquittal under Federal Rule of Criminal Procedure 29.
Therefore, we review this claim de novo. Oti, 872 F.3d at 686. “[T]he relevant
question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson, 443
U.S. at 319).
To convict Short of conspiracy to possess with intent to distribute 50
grams or more of meth, 21 U.S.C. § 846, the jury was required to find that:
(1) two or more persons agreed to possess meth with the intent to
distribute it;
(2) Short knew of the unlawful purpose of the agreement;
(3) Short joined in the agreement willfully, that is, with intent to
further its unlawful purpose;
(4) the overall scope of the conspiracy involved at least 50 grams of
a mixture containing a detectable amount of meth;
(5) Short knew or reasonably should have known that the scope of
the conspiracy involved at least 50 grams of a mixture containing
a detectable amount of meth.
See Franklin, 561 F.3d at 402.
Short first argues that he is entitled to an acquittal because “the
government offered self-serving testimony of methamphetamine addicts and
dealers who had entered guilty pleas and gave testimony in hopes of receiving
lenient sentences.” This argument is misplaced. “The jury ‘retains the sole
authority to weigh any conflicting evidence and to evaluate the credibility of
the witnesses.”’ United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012)
(quoting United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001)). Even
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“uncorroborated testimony of an accomplice or of someone making a plea
bargain with the government” can support a conviction, “provided that the
testimony is not incredible or otherwise insubstantial on its face.” United
States v. Shoemaker, 746 F.3d 614, 623 (5th Cir. 2014).
Next, Short argues that the testimony against him was insufficient to
connect him with the timeline of the alleged conspiracy. This assertion is not
supported by the record. Holliday testified that between August 2015 and
December 2015, Short (1) sold 1-3 ounces of meth consistently and (2) pooled
money with other individuals to purchase drugs amounting to at least a couple
kilograms. Newton also testified that beginning in June or July 2015, he would
pool money with Short and other individuals to purchase large quantities of
drugs. This testimony is sufficient to connect him to the conspiracy starting “in
or before January 2014 and continuing until in or around April 2016.”
Viewing the evidence in the light most favorable to the prosecution, a
rational jury could have found that Short committed the essential elements of
the crime beyond a reasonable doubt. We AFFIRM.
B. Calculation of Drugs Attributable to Short at Sentencing
As previously discussed, “[t]he district court’s calculation of the quantity
of drugs involved in an offense is a factual determination” reviewed for clear
error. Betancourt, 422 F.3d at 246 (quoting Alford, 142 F.3d at 831). The
district court ‘“may extrapolate the quantity [of drugs] from any information
that has sufficient indicia of reliability to support its probable accuracy,’ and
‘may consider estimates of the quantity of drugs for sentencing purposes.’”
Dinh, 920 F.3d at 313 (quoting Valdez, 453 F.3d at 267).
Short objects to the district court’s reliance on information involving
approximate time periods and unknown locations. Like Gentry, he failed to
present any evidence at sentencing to support his objections. Because it was
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not clear error for the district court to rely on the information in the PSR, we
AFFIRM.
Conclusion
Killough’s sentence is VACATED, and his case is REMANDED to the
district court for resentencing. On all other issues, we AFFIRM.
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United States Court ofAppeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
LYLE W. CAYCE
CLERK
October 28, 2019
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding:
Fifth Circuit Statement on Petitions for Rehearing
or Rehearing En Banc
No. 17-10165
USA v. Billy Gentry, Jr., et al
. USDC No. 4:16-CR-132-5
Enclosed is a copy of the court's decision. The court has entered
judgment under Fed. R. App. P. 36.
(However, the opinion may yet
contain typographical or printing errors which are subject to
correction.)
Fed. R. App. P. 39 through 41, and 5th Cir. R.s 35, 39, and 41 govern
costs, rehearings, and mandates.
5th Cir. R.s 35 and 40 require
you to attach to your petition for panel rehearing or rehearing en
banc an unmarked copy of the court's opinion or order.
Please
read carefully the Internal Operating Procedures (IOP's) following
Fed. R. App. P. 40 and 5th Cir. R. 35 for a discussion of when a
rehearing may be appropriate, the legal standards applied and
sanctions which may be imposed if you make a nonmeritorious
petition for rehearing en banc.
Direct Criminal Appeals. 5th Cir. R. 41 provides that a motion for
a stay of mandate under Fed. R. App. P. 41 will not be granted
simply upon request. The petition must set forth good cause for
a stay or clearly demonstrate that a substantial question will be
presented to the Supreme Court.
Otherwise, this court may deny
the motion and issue the mandate immediately.
Pro Se Cases.
If you were unsuccessful in the district court
and/or on appeal, and are considering filing a petition for
certiorari in the United States Supreme Court, you do not need to
file a motion for stay of mandate under Fed. R. App. P. 41.
The
issuance of the mandate does not affect the time, or your right,
to file with the Supreme Court.
Court Appointed Counsel.
Court appointed counsel is responsible
for filing petition(s) for rehearing(s) (panel and/or en banc) and
writ(s) of certiorari to the U.S. Supreme Court, unless relieved
of your obligation by court order.
If it is your intention to
file a motion to withdraw as counsel, you should notify your client
promptly, and advise them of the time limits for filing for
rehearing and certiorari.
Additionally, you MUST confirm that
this information was given to your client, within the body of your
motion to withdraw as counsel.
Case: 17-10165
Document: 00515175767
Page: 2
Date Filed: 10/28/2019
Sincerely,
LYLE W. CAYCE,
/
By:
Nancy F.Dolly,DeputyClerk
Enclosure (s)
Mr.
Mr.
Mr.
Ms.
Mr.
Ms.
Ms.
Mr.
Mr.
Frank Dounell Able
Derek D. Brown
Doyle Raymond Bunch III
Emily Baker Falconer
Michael Ray Harris
Camille M. Knight
Leigha Amy Simonton
Peter Christian Smythe
Shane John Stolarczyk
Additional material
from this filing is
available in the
Clerk's Office.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.